Tulane Institute on Water Resources Law and Policy
Tulane University Law School
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New Orleans, LA 70118-6231

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If not for the perfumed mist sprayed from metal pipes to camouflage the odor, it could be any blocky warehouse of white buildings. Past a dirt road, one white building links to an orange-tinged pipe, curved like the hook of a fattened umbrella.

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An occasional series exploring how prepared cities and states are for more extreme weather as the 2013 hurricane season gets underway.

Nondescript as it is, the pipe is at the center of one of the biggest fights over climate change in the country. It carries millions of tons of partially treated sewage daily -- after it is piped underwater from Miami Beach -- miles out to the ocean. Environmentalists fear a direct hit from a strong storm could knock out the plant and the pipe for long periods of time, sending raw sewage into Biscayne Bay.

"It could be much worse than Hurricane Sandy. If you had billions of gallons pouring into the waters, it would be a catastrophe, a calamity," said Albert Slap, an attorney supporting Biscayne Bay Waterkeeper, an advocacy group.

In addition to public health threats, there could be long-lasting effects on the ecosystem, he said. Biscayne Bay Waterkeeper's supporters also expressed concerns about the liquid chlorine that is stored at the plant.

The Biscayne Bay Waterkeeper group is trying to force the county in court to consider climate change as part of a $1.6 billion agreement among U.S. EPA, the Department of Justice and Miami-Dade County that aims to eliminate raw sewage overflows. They say that the consent decree, which was prepared in June and still needs to be approved by a federal judge, is putting the public and taxpayers at risk by ignoring the threat of rising sea levels at three county wastewater plants sitting in low-lying areas.

The case has national implications because it is unique for a wastewater consent decree to be challenged on climate change grounds, and it may set a precedent, according to analysts. Considering that climate change is a topic with a range of threat estimates, the decree fight is spurring competing claims about everything from how geology drives storm surges to how much mangroves buffer shorelines.

A $1.6B proposition

Opponents say the county needs to do a thorough vulnerability assessment of climate impacts and their associated price tag before it spends $1.6 billion on wastewater upgrades overall and $555 million for the Central District Wastewater Treatment Plant on Virginia Key specifically. Unless they do, the county could end up in eventual violation of the decree and the Clean Water Act while wasting millions on ineffective upgrades, they say.

Miami-Dade County calls the charges unfair, saying that it is considering sea-level rise in its upgrades to three county wastewater plants, just not as part of the formal decree with the federal government. The agreement, which is about complying with the Clean Water Act, is not the right document to outline details about engineering criteria such as flood barriers, the county says.

Miami-Dade will raise electrical equipment and undertake additional flood protection measures at the Virginia Key facility so it is prepared for 3 feet of additional sea-level rise and storm surges -- protections that should make the plant resilient through 2075, said Bertha Goldenberg, an official with the Miami-Dade Water and Sewer Department.

"We are considering climate change. The county has been looking at this for some time. ... The only thing is that it's not listed in the consent decree," Goldenberg said. "The consent decree is about the Clean Water Act, it's not about design standards."

Biscayne Bay Waterkeeper says it doesn't trust the county's science or promises considering past history, adding that the decree is the only place to address climate change, as it can be enforced in court. The county's consultant is making simplistic assessments of climate impacts and underestimating the cost of protective upgrades by $200 million or more, it argues.

Regardless of who prevails this fall in court proceedings, the situation also highlights broader concerns about the effect of climate change on wastewater plants.

A small piece of a much more expensive issue

According to the National Association of Clean Water Agencies, the national cost to prepare wastewater systems for climate change through midcentury could be $152 billion to $252 billion. The vulnerability of wastewater facilities stems from their basic need to discharge to bodies of water, placing many of them on low-lying areas on coastlines.

During Superstorm Sandy, 11 billion gallons of raw or partially treated sewage flowed into rivers, bays and city streets, according to an April analysis from Climate Central. A report from the Government Accountability Office this April also concluded that wastewater management systems face the choice of paying more now to account for climate risks or may "potentially pay a much larger premium later."

"In the worst cases ... climate change impacts could cause a system to fail, creating risks to public health," GAO said.

Slap and supporters of Biscayne Bay Waterkeeper point to a long accumulation of risks that have been accepted by Miami-Dade over the years.

The shorelines of Virginia Key have little protection from storms because they have lost much of their protective sand due to dredging that occurred decades ago to build a shipping channel, they said. Much of the county's sewage infrastructure is old, and there have been numerous sewage overflows throughout the entire Miami-Dade sewage system, despite two 1990s-era consent decrees.

"Why should we trust them this time?" asked Alexis Segal, executive director of Biscayne Bay Waterkeeper.

In its announcement in June, EPA noted that there were 211 reported sanitary sewer overflows between 2007 and 2013 in Miami-Dade County, with 29 million gallons of raw sewage reaching navigable waters of the United States. The agency said it had documented "numerous operation and maintenance violations" at the Virginia Key plant during inspections in 2011, 2012 and 2013.

The county has some of the lowest water rates in the country, which critics say has led to a pattern of neglect with repairs.

Will rising sea levels pose 'catastrophic damage'?

A group of climate scientists and professors at local universities have joined the Waterkeepers' complaint, along with several local leaders, including the mayor of Key Biscayne. In court documents, several of the scientists say the county needs to do a much more thorough analysis of wave mechanics, wind impacts of hurricanes and geology.

They note, for example, that the Virginia Key plant is surrounded by two areas of higher elevation, including an old dump with an elevation of 25 feet.

"These high areas will serve to force exceptionally strong and high storm surge waters into and across the lower elevation between them. ... Major storm flooding events will treat the [Virginia Key plant] as a sluiceway," Harold Wanless, chairman of the Geological Sciences Department at the University of Miami, said in a document supporting the inclusion of sea-level rise in the consent decree.

Others cite the case of Hurricane Andrew, which knocked out a wastewater treatment plant in the county for a month in 1992.

If its storm surge had hit the Virginia Key plant directly, the entirety of Virginia Key would have overtopped with "catastrophic damage" to the wastewater facility, Leonard Berry, a professor at Florida Atlantic University, said in another document. Add 2 feet of sea-level rise over the coming decades, combined with eroded shores in comparison to 30 years ago, and the Virginia Key plant could get knocked out for as much as a year with a direct hit from a strong hurricane, he said in an interview.

Sea levels in Miami have increased about 0.8 inch per decade in South Florida, according to the Southeast Florida Regional Climate Change Compact. As part of this compact -- which is a coalition of three other counties -- Miami-Dade formally agrees that sea levels may rise in the area by as much as 2 feet by 2060.

Biscayne Bay Waterkeeper says its goal is not to shut down the Virginia Key plant tomorrow. In addition to more scientific assessments, the group is calling for a blue ribbon panel to oversee the process and a possible bifurcation of the decree, so immediate repairs move ahead while longer-term issues with climate change are resolved.

For Slap, the issue is also that the consent decree doesn't fit with the rhetoric of public officials. EPA has guidelines for climate-ready utilities, and the Obama administration has released a series of plans -- including executive orders overseeing rebuilding in the Northeast after Superstorm Sandy -- calling for protecting infrastructure against rising seas, floods and fires.

"When the rubber meets the road, they don't walk the walk," Slap said about the Obama administration and the county.

EPA spokeswoman Davina Marraccini said the agency does not comment on pending litigation but said that municipalities should try to avoid "delayed costs" by addressing a problem correctly the first time and should consider "all available information" with upgrades to prevent wastewater overflows, including weather patterns.

Or can county planners deal with rising risks?

In an interview, Goldenberg of the Miami-Dade Water and Sewer Department said she thinks the criticism is unfair. According to the county's data, 3 feet of additional sea-level rise combined with storm surge from a Category 5 hurricane could saturate the Virginia Key plant but not knock it out or cause catastrophic damage. Considering that the facility sits 10 to 17 feet above sea level, the biggest effect from a storm likely would be to electrical equipment sitting low on the ground, she said.

"It's not that we are not looking at this. We are," she said.

The county relied on a consultant, Hazen and Sawyer, for its calculations, and utilized maps from the National Oceanic and Atmospheric Administration, according to Goldenberg.

Under a state law, the county is required to eliminate ocean outfalls of treated sewage by 2025. By that time, the county plans to stop using the big outfall pipe and move to injecting treated sewage deep underground. As part of repairs to comply with that law, the county plans to protect all three of its wastewater plants against climate change by raising electrical equipment higher and adding some flood barriers at a cost of around $30 million, she said.

The sea-level rise considerations at Virginia Key -- and the other plants -- will be noted in design contracts, Goldenberg said. The climate plans also are noted in several pages in a document released in June outlining how the county plans to comply with the ocean outfall legislation through 2025. That document states that the sewer department "will proceed with a program to add concrete walls at strategic plant locations to reduce effects of storm surge" and calls for elevation of equipment and other protective "features."

The county wouldn't go into such detail if it wasn't serious about adding the protections, according to Goldenberg.

To comply with the 2025 requirement, the county also is planning to build a new wastewater plant farther inland. The idea is to gradually reduce flows at Virginia Key and let the new, less vulnerable plant take up much of the load.

And will a court's decree make any difference?

It doesn't make sense to put climate change in the consent decree, when other environmental issues -- such as the efficiency of motors and safety regulations -- are not part of it either, Goldenberg said.

The National Association of Clean Water Agencies, which speaks on behalf of publicly owned wastewater utilities, made a similar argument in comments filed in support of the federal-county agreement. It would be unprecedented to include climate change in a wastewater consent decree, and there is no reason why this one should be the first, NACWA said.

There are roughly 100 public utility members nationally under some form of decree related to sewer overflows, and most of those were approved by courts without much change from the original proposal, according to the association.

"They are not the experts on the Miami wastewater system. They are not the experts on wastewater treatment in general," Nathan Gardner-Andrews, general counsel at NACWA, said about decree opponents.

Climate change is an issue where science keeps getting refined, so it makes sense to address it in planning documents that allow flexibility, not through a court process, according to supporters. It also is an issue that utilities are taking seriously in infrastructure planning, Gardner-Andrews said.

"This is not something that people are asleep at the wheel on," he said.

The Tulane Institute on Water Resources Law and Policy has released a White Paper looking at how the RESTORE Act will work and its implications on the ecosystems and communities of the Gulf. The paper,“Promise, Purpose, and Challenge: Putting the RESTORE Act into Context for the Communities and Ecosystems of the Gulf of Mexico”, is aimed at improving the public’s understanding about the Act and how it will work.

The RESTORE Act was enacted by Congress in 2012 and redirects ta portion of the Clean Water Act administrative and civil penalties flowing from the Deep Water Horizon disaster to the Gulf Coast for ecologic restoration, economic sustainability, and the encouragement of Gulf oriented science.

According to Institute Director Mark Davis, “The RESTORE Act is an unprecedented redirection of Clean Water Act penalties and like most unprecedented things comes with limitations, questions, and new responsibilities. The Act can help make many good things happen but there are many needs it won’t touch. It will take concerted effort and meaningful public engagement to deliver on the promise of this Act. While no one wants future spills, history teaches that we will have them. Whether future Clean Water Act dollars will go to improving the areas impacted by those spills will turn largely on whether the RESTORE Act is an experiment the country thinks was a success.”

We would like to make sure that all TUWaterWays readers know about the3rd annual Idea Village Water Challenge that will be held March 18 in New Orleans. This is a great place to learn about the exciting opportunities for new ideas and businesses focused on water.